SERCOMBE & WENFELD

FEDERAL CIRCUIT COURT OF AUSTRALIA

SERCOMBE & WENFELD

[2019] FCCA 3525

Catchwords:
FAMILY LAW – Parenting arrangements –practical difficulties – parents live some distance apart – incapacity of the parents to communicate – fifteen year old child – views of the child – joint and several parental responsibility – best interests of the child – order made for the child to live with the father and spend time with the mother.

Legislation:

Family Law Act 1975 (Cth), ss.65F, 60CA, 60B, 61DA, 65DAC, , 61C, 60CC, 65DAA, 60CA

Cases cited:

Goode & Goode (2006) FLC 93-286

Marvel & Marvel (No.2) [2010] FamCAFC 101

Mazorski & Albright [2007] FamCA 520

Stevenson & Hughes [1993] FamCA 14

Harrison & Woollard (1995) FLC 92-598

Re R Children’s Wishes [2000] FamCA 43

Applicant:

MS SERCOMBE

Respondent:

MR WENFELD

File Number:

PAC 5638 of 2007

Judgment of:

Judge Harman

Hearing date:

11 February 2019

Date of Last Submission:

11 February 2019

Delivered at:

Parramatta

Delivered on:

11 February 2019

REPRESENTATION

The Applicant appeared in person

The Respondent appeared in person

ORDERS

I discharge all prior parenting Orders with respect to the child X (known as X) born … 2004.
THE COURT NOTES that no Order for the allocation of parental responsibility is made and with the consequence and intention that section 61C of the Family Law Act 1975 will apply such that the parents have joint and several parental responsibility and each is entitled to make major issues decisions for X at such times as he is in their respective care and with the consequence, as X will be in his father’s care during school terms, that the father will decide the school at which X is enrolled subject to the following Orders.
X shall live with his father.
X shall spend time and communicate with his mother:
(a)Each alternate weekend during school terms from 5pm Friday until 5pm Sunday with changeovers to occur at the commencement of each period at Suburb A Railway Station and at the conclusion of each period at the mother’s home;
(b)In addition to the above, X shall spend one half of each NSW school holiday period with his mother being, absent agreement between the parents:
(i)During the short NSW school holidays (i.e. those following terms 1, 2 and 3) from 12noon on the first Saturday of the holiday period until 5pm on the middle Sunday of the holiday period, and;
(ii)During the Christmas school holiday period for the first half of the holiday in each alternate year commencing 2019/2020, being from 12noon on the day after the last day of school attendance term 4 until 5pm on 9 January;
(iii)For the second half in 2020/2021, from 12noon on 9 January until 5pm on the last Sunday before the commencement of the following school term;
(iv)With changeover arrangements to be as above (changeover at Suburb A Railway Station at the commencement of the period and the mother’s home at the conclusion of the period).
Each parent shall be entitled to telephone or otherwise communicate with X via electronic means (including but not limited to email, Skype, Facetime or similar electronic platforms or applications) at all reasonable times and with reasonable frequency whilst in the care of the other parent and neither parent shall take any step to block or create an impediment to that communication between X and the other parent.
Each parent shall forthwith and to the extent that they have not already done so, do all things, sign all documents and give all consents, authorities and instructions as are necessary to enable the details of each parent to be recorded as both parent and emergency contact person with any school attended by X and so that each parent is entitled to obtain reports, information, notification of events to which parents are invited or encouraged to attend and to attend such events.
Each parent shall forthwith and contemporaneous with the event advise the other of any specialist medical appointment, significant illness or injury or hospitalisation relating to X and shall provide such instructions and authorities as are necessary to ensure that each parent can be fully advised and consulted with respect to treatment and to visit X if hospitalised.
All outstanding Applications and Responses are withdrawn and dismissed and all issues are removed from the list of matters awaiting hearing.
Upon the expiration of the Appeal period and in the event that no appeal is lodged that all exhibits then be returned to the party who tendered same and that all material produced on subpoena or pursuant to section 69ZW of the Family Law Act.

IT IS NOTED that publication of this judgment under the pseudonym Sercombe & Wenfeld is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

PAC 5638 of 2007

MS SERCOMBE

Applicant

And

MR WENFELD

Respondent

REASONS FOR JUDGMENT

These proceedings relate to future parenting arrangements for a young lad, X, born … 2004.
This young lad much prefers to be called X and, as explained in a Child Inclusive Child Dispute Conference memo, wherein X is reported as explaining that this is because there are a number of people in his family called X. No doubt that is part of why he has adopted the name. He has fallen into the pattern of being known by his middle name, X. It is his preference. Accordingly, that is what I will refer to him as throughout, save and except that the Orders to be pronounced will need to state his full and proper name.
The parties to the proceedings are X’s parents, his mother, the Applicant, and his father, the Respondent.
These parties are not strangers to litigation. They have been involved in litigation in relation to young X’s arrangements, albeit not continuously, since July 2009. It was nearly 10 years ago when the first Application was filed. Since that time, there have been not less than 14 court events, including three substantial judgments previously delivered.
The parties have been in dispute, it seems, since X was a few months, if not weeks, of age.
The first set of orders relating to X’s welfare were made, in proceedings which are not part of this court file, on 21 October 2004. At that time X was about six months of age.
The file to which these proceedings relate was commenced by an Application filed in July 2009.
The dispute on this occasion arises as a consequence of a period of travel that was undertaken by X’s mother. The existing orders and those which presently regulate X’s arrangements, (although they are not the arrangements presently operating), are orders made by Federal Magistrate Dunkley, as he then was, in 2009. Those orders provide for the discharge of earlier orders made by the Family Court of Australia, Sydney on 21 October 2004, and otherwise provided:
(a) that the parents have equal shared parental responsibility;
(b) that X live with his mother;
(c) that X spend time with his father.
Times are then specified. Time includes alternate weekends, Friday to Sunday, periods during school holidays and the like.
Since that time, there have been further substantive orders made. On 22 July 2010, a variation of those orders was made so as to provide for time from 3 pm Friday until 6 pm Sunday, extended to the same time Monday if a long weekend, as well as other periods.
There have been subsequent proceedings relating to overseas travel, although it would appear, somewhat frustratingly for the parties, the travel authorised by those orders did not ultimately occur.
The parties also entered into a Binding Financial Agreement in October 2004.
This tranche of proceedings arises as a consequence of Ms Sercombe having travelled to Country D to be with and assist her aged parents. That is something for which she is substantially criticised by the father, the suggestion that she cares more about those relatives than X himself. I reject that submission.
When Ms Sercombe travelled, X passed to live with his father during his mother’s absence. Mr Wenfeld did not consent to X travelling with his mother and Ms Sercombe felt compelled to go as her parents were ill.
The absence would appear to have been for a period of 12 months or so commencing August 2017. During that period, or at its conclusion, X’s school was changed to a school proximate to the father. That is one of the issues between these parties as the distance between them, geographically, let alone on other bases, is large.
The father lives on the Region B, the mother in Suburb E in Sydney. The mother relies on public transport and does not have a motor vehicle or driver’s licence. Accordingly, all travel undertaken by Ms Sercombe for the purpose of collecting and returning X, or engaging in other activities with him, is undertaken by train and bus.
In dealing with these proceedings today I have read the documents identified by the parties.
In the case of the mother, that comprises:
a)Her Application Initiating proceedings filed on 11 September 2018,
b)Notice of Risk filed the same date; and
c)Affidavit filed the same date, together with two further affidavits filed respectively on 29 October 2018 and 20 December 2018.
As to the father, I have read:
a)His Response;
b)Notice of risk; and,
c)Affidavit;
All filed on 22 October 2018.
This tranche of proceedings has a relatively short history before the Court. After the Initiating Application was filed, the proceedings came before the court on 22 October 2018. On that date, it would seem that young X was present at the court. Thankfully, he did not participate in the proceedings, although it would appear that he was fully aware of the contents of the documents filed by his mother. The mother indicates in her evidence that she was contacted by the young lad who suggested, to her disquiet, that a number of the statements made in her material were incorrect and that he was unhappy that she had referred to matters that X had related to her. That evidence is contained at paragraph 3 of the second Affidavit, wherein it is suggested X said to his mother:
I read your affidavit. Dad gave it to me. You should not be writing many things there.
Mr Wenfeld agrees that the child attended court. Mr Wenfeld agrees the child has read the documents that were filed in this tranche of proceedings or portions of them, at least the documents filed at that point in time. Why that was considered necessary is unclear. It might well be a simple misguided belief that this young lad, being 14 years of age, has some right, so to speak, to be involved in proceedings or in understanding the business of his parents. It is not his right. Indeed, it is not of any assistance to him.
In addition to the material of the parties, I also have the benefit of a Child Inclusive Conference memo. That Conference was ordered on the first return date of the proceedings. After the parties had attended that conference with X, the matter returned before the court on 14 November 2018 for possible interim hearing. It was not possible for anything to be done with the matter on that day as it was contained in a busy duty list.
Dates became available so that the proceedings could be heard and determined promptly. Accordingly, all proceedings were consolidated and the matter listed for Final Hearing 10 January 2019. Regrettably, the matter was then not reached on the day and was adjourned for about a month to today. The matter has proceeded today on the basis of the above material being read and considered and each party cross-examining the other.
I use the term “cross-examined” in its loosest sense. In reality, the parties have engaged in an argument or dialogue with each other, often without involving anything related to or relevant to the proceedings, and often without the ability to follow that which was the subject of discourse. The parties speak in something in the nature of code which has meaning to them. They each understood what the other is saying or referring to but, as was opined on several occasions during those exchanges, the Court was very much left out of the communication.
The Child Inclusive memo has allowed the matter to be heard quickly and without the benefit of a Family Report. The memo gave two case management recommendations; namely:
(a)It is unlikely that a Family Report would substantially assist the court; and,
(b)Given the longstanding, entrenched and acrimonious relationship between Mr Wenfeld and Ms Sercombe, it is unclear that referral for post-separation parenting intervention is likely to result in significant change by either.
The latter recommendation is particularly apt as it is clear and apparent from the material that the parties have filed, let alone their interaction with each other whilst one or other of them has been in the witness box, that they cannot abide each other. Their relationship has broken down beyond any point of repair. I accept, without reservation, that which the family consultant has opined - that there is nothing to be gained, save the expenditure of time, in referring the parties to family counselling services. There are others who might obtain greater advantage from them. Thus, I am satisfied that an exception to section 65F of the Family Law Act 1975 is established.
That is particularly tragic as young X, when interviewed by the Family Consultant, was clear that:
His parents do not get on well and that there is a lot of screaming between them when they interact. He said he did not like this, but it has been this way for as long as he could remember.
One would think that this might, in fact, be from the time that his memories commence, noting that the parties commenced their litigation moments after his birth.
Young X has now been living with his father for in excess of 18 months. That does not, however, determine the proceedings. As the Full Court has been clear in Goode & Goode (2006) FLC 93-286 and Marvel & Marvel (No.2) [2010] FamCAFC 101, the court does not proceed to determine parenting proceedings on the basis of ascertaining past arrangements and either restoring them or confirming them least there be some issue of risk. The court’s role is prospective, to determine what will best meet this young lad’s interests in the future. To address that, one must turn to the balance of the memo and the parties’ evidence.
This young lad has been attending the same school now for two terms, having just commenced his third term at the start of this school year. It is suggested that he has formed a new group of friends. I have no doubt that he has friends from the Suburb E area where he has lived with his mother, effectively, since birth. Whilst there have been changes of accommodation, the mother being dependent upon a rental market, the child has always lived in or about that area. There have also been a number of changes of school for X which, in all probability, have arisen from the need to change accommodation.
It has not been suggested, prior to this tranche of proceedings, that this has been disadvantageous for X. Certainly, a child living in one base from birth until completion of school might be seen as preferable, but it is not a reality for many if not most children. Certainly, it has not been for X. However, it is a function of the relative poverty of Ms Sercombe, a poverty which has not been greatly aided by financial provision by Mr Wenfeld by way of child support or otherwise. Neither parent would appear to have been assessed in the past, nor will they be assessed in the future, to pay any significant amount to the other.
The present placement arrangements for X would seem to be serving his needs well. Whilst it is suggested by Ms Sercombe that X is scared of his father and that his father has, in the past, been abusive towards X, that is not suggested by X. When asked about how he felt about present arrangements - that is, living with his father and spending time with his mother - he said he was “happy”. He indicated that he felt settled at school and with the other parts of his life. He was clear that he would not like the disruption of changing again. He indicated to the Family Consultant that he has made his mother aware of this and he thought that she had understood it. But yet the proceedings continued.
That, perhaps, is consistent with aspects of Ms Sercombe’s evidence wherein young X has written to his mother, although Ms Sercombe is concerned that it may have been dictated for him by his father or, indeed, sent by his father on X’s behalf, indicating:
On multiple occasions, I have made it clear to you that I want to live with my dad and nothing you do or say will change that. In addition, taking my dad to court simply isn’t fair as it is my choice. Doing it will only bring a lot of stress to both my dad and I and will, in the end, for you achieve nothing.
Certainly, the language that is used would suggest that either X has an extraordinary grasp of English, albeit not punctuation, or perhaps that there has been some assistance or direction given in the communication.
A significant issue between the parties relates to a particular orthodontic process that Ms Sercombe would appear somewhat inured with and that Mr Wenfeld rejects as inappropriate for this boy. I do not propose to engage in that issue, save to reflect that the dispute between the parties with respect to it is emblematic of the general lack of communication, trust, respect or accord for the other, and their inability to make joint decisions.
Each respectively suggests that the child is significantly disadvantaged with or without the treatment. Each suggests that the other is neglectful if not abusive of the child by either providing or withholding that treatment. There is no evidence that permits any finding to be made that either position is correct or more correct than the other.
Each has a catalogue of complaints with respect to the other including complaints with respect to:
a)Poverty and neglect;
b)Not feeding the child or feeding the child improperly;
c)Requiring the child to travel to school, a distance of an hour or so, particularly in the afternoon, it being agreed that the child either walks or catches a bus to the station and then a train for 15 or 20 minutes back to his place of residence with his father.
None of these are matters that cause me any real concern.
The parties cannot see it, but what they each represent for young X is a very much loved parent. If their dispute continues as it is, they run the risk that within a very few short years this young lad, now nearly 15, will not want or have a relationship of any importance with either parent. If they each make it simply too hard, it is probable that he will decide for himself to simply withdraw from those relationships and each of them.
It is not readily predictable how an adolescent will respond to this level of conflict in his life. As X has described, “It has been this way for as long as I can remember.” He is not used to and has never had the benefit, as the International Convention on the Rights of the Child directs, of growing up in a family environment with love, peace and understanding. He has grown up in a fractured and damaged family where there is nothing resembling peace or cooperation, merely discord, distrust and active conflict. That is regrettable for X, but it is, sadly, his lot in life.
It is now, as Mr C, the Family Consultant has suggested, too late to do anything that may affect change. It is merely a matter of letting this lad’s adolescence play out. He will, in a few short years, attain his majority and his parents will, at least as regards decisions to be made for him, be irrelevant. He will make his own decisions. In fact, it is probable he will do that well and truly before he attains his majority if he is not now.

For a child like X, exposed to this level of conflict, all that he has known in his life is having grown up with conflict circumjacent to his existence and his experience of each of his parents and is likely to reject one or both. There is no suggestion at this point that he does.
X is clear that he is not fearful of either parent. He has no worries in relation to his relationship with each of them and that is so notwithstanding the catalogue of complaint that each parent raises with respect to the other.
The mother suggests that the father should be compelled to engage in anger management counselling. The father suggests that the mother needs to participate in psychological counselling. Each suggests that the other parent has caused or inflicted, willingly, knowingly or otherwise, psychological or emotional harm on young X. The evidence does not establish any of these things.
Young X has been horribly disadvantaged by the litigation that his parents have chosen to engage with. It has distracted his parents and made them less emotionally available to X.
There is nothing in the evidence to suggest that X has been or would be harmed through his wearing or not wearing a “myobrace”. That is a substantial area of the evidence to which both parents have devoted a great deal of attention, sadly, without it actually producing any evidence that would be of assistance to this Court in making a decision.
I do not propose to canvas the evidence in any greater detail. Suffice to observe that it must be a very difficult position that these parents and each of them and, in particular Ms Sercombe, find themselves in. Young X has, from birth until 12 to 12 and a half years of age, lived with his mother and spent alternate weekends and school holiday time with his father. He was then passed to live with his father and, for 12 months or thereabouts, has practiced a relationship with his mother by Skype, telephone and other electronic means.
Upon the mother’s return to Australia, the dispute between these parents has then crystallised. The mother seeks the child’s immediate return. The father resists this. Each enlists X as their ally, as it were, suggesting that he supports the relief that they propose, or that his best interests compel that they be successful in obtaining the relief they seek.

Determination

In turning to the legislation, I must commence with section 60CA which reminds the Court in all this time, the child’s best interests are the paramount consideration.
I do not suggest that either of these parents consciously or deliberately disregards X’s best interests. It is just that they have nothing resembling a parental alliance. They do not have a shared view of what is best for their child or how to achieve it. Indeed, young X is clear about that, indicating to Mr C that his parents have different approaches to parenting and other things. He was able to give examples.
The objects and principles in section 60B must be considered. I incorporate them herein.
1) The objects of this Part are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2) The principles underlying these objects are that (except when it is or would be contrary to a child's best interests):
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
The objects and principles do not form part of the substantive law to be applied to the facts of the law, but do guide the outcome that is to be achieved. They assist in understanding, interpreting and applying the relevant provisions.
The court should make orders that, as far as possible, ensure that children have their best interests met through having the involvement of both of their parents at a meaningful level and to the maximum extent consistent with their best interests.
There is a real and geographical issue here that impacts practicality. It is not possible for this young lad to be transported over a distance of an hour and a half or so, by public transport, between the homes of the parents to school (which ever school X might be attending) during the school term. Thus, time will need to be confined to alternate weekend time in terms as that is all that the parties advance as workable, irrespective of how that travel is undertaken. The level of involvement is largely dictated by practicality.
The issue then is which parent will spend time and which parent will have predominant care of this young lad. Each will have a meaningful involvement in his life within the discussion of that prefix in Mazorski & Albright [2007] FamCA 520 and as adopted by the Full Court.
Each parent is a person of real importance and meaning to young X, notwithstanding how much they despise each other. X cannot apparently see the major flaws that each of the parents see in the other. One would think that the small splinter that each perceives in their own eye is very much matched by the staff they see in the eye of the other. Yet, for young X, those things are simply not apparent. He loves his parents. He wants to spend time with them both.
Involvement and practicality must also be seen in the context of an adolescent child who also expresses his desire to engage in sport, although a knee injury would appear to have kept him away from that for some little time, and to spend time with his friends, both those he has made in the father’s area and those he has made in the mother’s area, and to be able to participate in part-time employment, having told the family consultant in October, 2018 that he had undertaken training and was hopeful of being offered a position at a local McDonald’s. Local, that is, to the father’s home.
The nature of the meaningful involvement by either parent with X must be viewed in that context. This child is of an age whereby the parents and, principally and predominantly in terms of past care, the mother, have done their job of raising the child so that he can now individualise, become his own person and pursue his own needs and interests, without necessarily feeling that he needs to spend all of his time with his parents.
For young X there may well be an element of enjoying the relative material and creature comforts that he has at his father’s home and in his father’s care. With recently inherited money available to meet his school fees and other expenses, his father is far better off financially and materially than the mother. Indeed, one of the criticisms Mr Wenfeld raises of the mother is that she has raised the child, to date, in an environment of relative poverty. If that is so, there clearly has been the ready means by which Mr Wenfeld might have contributed to assist in alleviating those problems. He could have offered. He has not.
I do not refer to money and poverty for any reason that to identify that it may influence X’s views. I do not otherwise see it as relevant. Poor parents love their children no less than wealthy parents and Ms Sercombe has loved and cared for X and done an excellent job.
In dealing with the objects, however, meaningful involvement, as discussed, must be confined to X spending alternate weekends and parts of holidays with one parent and living predominantly with the other.
The child must be protected from physical and psychological harm, from exposure to or subjection to abuse, neglect or family violence. The evidence that is led by these parties and its testing, if it might be so described, does not allow or permit or safely make available any finding of fact that the child requires protection from such behaviours in the home of either parent.
Each of the parents is capable of looking at the smallest criticism of the other and turning it, very much, from a molehill into a mountain. Again, X does not follow that path. He clearly seems to wish to be left out of the conflict between his parents. Yet he is, at every turn, involved in it. He is brought to the Court, rather than attending school, shown documents, repeatedly questioned and asked about the matter, and presented at various appointments with medical practitioners when the parents simply cannot agree on the need for that to be so. However, I am not satisfied that these things extend to the level where a finding could be made, or a finding is readily available on the evidence, that the child must be protected.
Thus, there is the issue of meaningful involvement with the practical parameters I have described.
The court must make orders that ensure that children receive adequate and proper parenting. Curiously, notwithstanding the absolute criticisms of each of these parents levelled against the other, unwarranted and unnecessary, they each propose that the other parent have alternate weekend overnight time and half of each school holidays. One would wonder why that would be so when each would appear to suggest that the other is, at best, neglectful or disinterested, and at worst abusive. Perhaps it is because each understands, deep down, that it is not so. They each have something to offer this child. They parent differently. They have different needs and expectations in life and a different belief system. But that does not make one better or worse than the other, merely different.
The court must make orders to ensure that parents meet their duties and fulfil their responsibilities. There is no order that is necessary. These parents will do so.
Ultimately, the objects provide that, as far as practicable, this young lad should have a relationship with both parents for the little time that is left before it will become a matter entirely for him. The maximum extent to which that can occur would appear, from that which is submitted by each of the parties and the orders that they each propose, to be an alternate weekend time arrangement.
The principles underlying the objects create rights for X. He has rights, subject to them not being found contrary to his best interests, to know and be cared for both of his parents and others of importance, to spend time and communicate with both of his parents and others of importance, including friends and relatives, to have his parents share duties and responsibilities and to have his parents agree about future parenting. The latter two rights are trampled underfoot by these parents, it would seem since X’s birth.
X also has a right to enjoy culture. His parents come from disparate cultures. He has the opportunity to practice culture when he is with each parent.
The principles do not assist a great deal in the sense that each parent agrees that the right that X has to know and be cared for by each of his parents should be fulfilled. It is simply that neither is able to support it beyond mere compliance with an order.
The discussion of the obligations created by parenting orders undertaken by Fogarty and Nygh JJ in Stevenson & Hughes [1993] FamCA 14 is instructive. What is required to enable the child to have the maximum benefit of a relationship with both parents is not just time being available, but active and practical support, including emotional support, letting the child know that the other parent is trusted, loved and an important part of the child’s life, so that the child can understand that his parents both love him.
These parents both want something that is similar, even if not identical, for X. Both can meet his needs. Each supports X’ relationships. That speaks to some aspects of the evidence, particularly with respect to travel arrangements to which I will turn.
I must then have regard to section 61DA and the presumption of equal shared parental responsibility.
Ms Sercombe, by seeking to re-affirm existing orders, would appear to propose an order for equal shared parental responsibility. Such an order, if made, would, by reference to section 65DAC, require that the parents consult with each other and make a genuine effort to resolve disputes and to arrive at joint and consensual decisions about major issues, thankfully limited, relating to matters such as school or change of school, non-emergency or elective medical procedures, change of name and religious upbringing.
There are no significant disputes about the majority of those issues and, thankfully so, as it is difficult to comprehend that these parents would ever agree on an outcome. Certainly, the orthodontic treatment of the child and his orthopaedic treatment in relation to his knee injury are two examples of how the parents cannot agree and with the suggested disadvantage to the child of missing out on orthodontic work that is necessary or having had orthodontic work which is not necessary performed, which has then caused orthodontic problems for the child. It is difficult to understand what order this court could make that would assist these parents to make those decisions jointly.
In those circumstances, I propose to make no order for parental responsibility. That will leave the parents with joint and several parental responsibility as described in section 61C. Neither is deprived of decision-making authority, but nor need the parents consult with each other. They will simply make whatever decisions they think are necessary when the child is with them. It would appear that this is what has been happening for some few years in any event.
I am satisfied that the presumption would not apply or, if it applied, that it would be rebutted. Perhaps more accurately the latter. The demonstrated incapacity of the parents, the child’s perception of that incapacity and the family consultant’s commentary upon that issue is such as to irresistibly suggest that these parents simply cannot make joint decisions, and it is counterproductive to engage them in the process of attempting to, as the young lad has experienced. When the parents are required to consult, it ends in a voluminous argument and probably with no resolution. Certainly, it has not achieved a resolution in relation to his dental needs.
That being so, I am not obliged to consider equal or substantial and considerable time before any other time arrangement. Neither parent suggests that either of those options could be considered in light of the distance between them and the practical difficulties.
I must then turn to section 60CC, headed “How a Court Determines What is in a Child’s Best Interests”, and commence with the primary considerations being:
a)The benefit to the child of a meaningful relationship with both parents; and,
b)The need to protect the child;
the latter prioritised over the former by subsection (2A).
I am not satisfied, in this case, that the latter consideration is in play. Certainly, each parent has engaged in behaviours which have been lacking in insight or emotionally insensitive as regards to X’s needs or perceptions. But I am not satisfied the child has been or would, in the future, be exposed or subjected to abuse, neglect or family violence by either parent. Perhaps he might be by the dynamic of their parenting relationship and the conflict which arises therefrom, but not directly by the parents.
The benefit to the child of a meaningful relationship with each parent is, on some levels, easy to address. This child has a well-established, well-settled and meaningful relationship with each of his parents. It will survive and subsist. Whether the child lives with his mother and spends alternate weekends and holidays with his father, or lives with his father and spends alternate weekends and half the holidays with the mother, the relationship is well-cemented already.
The primary issue is the impact upon the meaningful relationship young X has with each of his parents of their ongoing conflict. That is the greatest risk to his meaningful relationship with either or both parents.
Accordingly, everything that can be done should be done to avoid that conflict. That cannot be achieved through therapeutic intervention. I accept Mr C’s recommendation that it is, in all probability, a waste of time. The parents are now cemented in their positions, engaged in thoroughly concrete thinking with respect to the other, and believing that their proposals and only their proposals will meet the child’s needs and interests.
What can be done is to make things clear, certain and predictable, leaving as little as possible to chance and having arrangements which meet this lad’s needs without the need for difficulties to arise in the future. There is benefit to young X of having and continuing his meaningful relationship with both parents. However, that does not greatly assist in favouring one proposal over the other.
In seeking to find something that breaks that stalemate, I turn to the additional considerations.

Views

I accept that young X's views are accurately and appropriately set out in the Child Inclusive Conference memo. X was clear, when interviewed by the head of Child Dispute Services, that he had no concerns with or fear of either parent. That is so notwithstanding that each parent suggests that he is scared of the other. Perhaps he is scared of them collectively in that he is scared of the conflict that plays out between them at every opportunity. However, he is not scared of them individually and does not raise any concerns at all, save a desire that his arrangements be certain, clear and finalised without ongoing litigation or his involvement in it.
I am satisfied that X is a relatively mature child. His age is not the criteria by which his views are weighed. It is his maturity, his appreciation of the conflict and his understanding of what is going on, including the consequences to him of any view he expresses. I have no doubt that X is fully aware that if he expresses a preference to live with his father, that this means that he may well do so, and that if he does, it will mean he does not live with his mother. This is not a young lad who could be suggested to misunderstand or misapprehend the consequence of that which he advances.
By reference to Harrison & Woollard (1995) FLC 92-598and Re R Children’s Wishes [2000] FamCA 43, I am satisfied significant weight should be attached to young X's views, perhaps not dispositive, but not far removed therefrom. He is a young lad who is fully aware of the conflict between his parents. He is fully aware of the disruption that will follow if another change is made in his life. He is fully aware that his parents do not communicate; that they have an acrimonious relationship that is unlikely to change at any point in time. He appreciates that both of his parents are entrenched in their views, including their hostility towards the other. Where that has come from is unclear. X makes clear to each of them, if only they could hear his voice, that he is a little tired of it.

X's views, however, support the father's position of remaining living predominantly with his father and attending school proximate to his father's home.

Nature of the child's relationship with each parent and other persons with whom the child has been living

Young X does not live with anyone but his parents. Accordingly, this is already considered above.

The extent of which each parent has taken or failed to take the opportunity to participate in decision making, spending time or communicate with the child

Neither has. Indeed, quite the opposite. Each seeks to participate far more than the other is willing to facilitate. The mother gives evidence that she has been blocked by the father from communicating with the father. It would not seem communication with X has been blocked. It would seem that the father considers any communication from the mother distasteful, particularly communication that occurs four to five times per week, or when she asks questions or seeks to advance her views and to have the father comply with them. Similarly, the mother would appear to find communication with the father distasteful. Neither would appear to listen to each other, including when putting questions to each other in the witness box. They each have a predisposed view of the other. They are wrong in the views they hold. Neither is the devil incarnate.
The extent to which the parents have failed to participate is not relevant. What is relevant here is perhaps that which was contained in section 60CC(4) before the June 2012 amendments being the extent to which each has interfered in the other's ability to be involved. To that extent the mother complains vociferously that she is not being provided with information in relation to the child's medical treatment and not advised of appointments or able to obtain information. That can and will change, and I propose to make orders to facilitate it.
I accept that which is put by the father. It is probably counterproductive for these parties to attend an appointment together. Having observed them in the witness box, each cross‑examining the other, I could not believe that this would be beneficial for X, or that it would advance his medical treatment, or that it would allow for his medical treatment by a single practitioner to continue. Doctors would all very quickly become tired of refereeing the squabbles between these parents and would extract themselves from that circumstance. But each should be able to be involved and fully advised.
If nothing else, there is evidence arising from cross‑examination that on at least one occasion, in the recent school holidays, that X has suffered as a consequence of a lack of communication between his parents. The mother has sought information, perhaps with too much vigour, so as to be a nuisance or pestering the father, from his perception. The father has not responded, and accordingly the child has been engaged in activities which are contrary to his medical advice on the basis that the child miscommunicated to the mother what that advice was, presumably for his own needs, as he wished to engage in the very activity that has now caused him some setback in his recuperation. That is all a function of parental discord and dysfunction of communication.
If the parents could simply deal with each other cordially, perhaps as cordially as they were at the time of X's conception, then it might be possible that X would benefit from that. However, neither parent would appear, after 14 years of conflict with each other, to have the resources or resilience to effect that change. Certainly it was the opinion of Mr C.

The extent to which each parent has fulfilled or failed to fulfil their obligation to maintain the child

It would seem that there is a great deal of financial concern that each has with respect to X. The mother complains that the father has not assisted and that he is, in the vernacular, a “penny pincher” who prefers to keep money rather than expend it on X or to have assisted her, in the past, in meeting X's needs. For his own part, the father is clear that the mother has “never worked”. It would seem a grave and erroneous criticism of her, as she has parented X for 12 of his 14 years and has found herself subservient to that care rather than any other employment.
The mother complains that she is owed money. It is made clear by the father it will not be forthcoming now the child is living with him. The level of child support each has paid to the other in the past is a matter of great criticism, but it does not assist me a great deal. It is yet another battlefield upon which these parties play out their war.

The likely effect of change, including separation from either parent or any other child or person with whom the child has been living

The father's proposal, that which is supported by X's views, inherently involves change. A change that is not recent, it has been in place for some little time.
I make clear that I am not critical of the mother for travelling to Country D to be with her sick mother, and to assist her in a time of need. The real issue would appear to be that the mother had indicated that she would be gone for a few months and was then ultimately gone for a year or close to it. That, again, is no criticism of the mother. She was doing what was necessary to assist her aged parents, but one might infer in the full knowledge that X's needs were being met by his father in Australia and thus without the need to hurry back.
Neither parent, notwithstanding the view that each has of the other, is a risk to X other than through their attitude towards the other and how those attitudes play out in dysfunction. The likely effect of change for X is modest. X is clear that it is something he desires, it is something he can negotiate and make work. He desires to still see both of his parents irrespective of whom he lives with during the school week, and at his age, and now engaged well and truly in high school, one would think his devotion to friends, part-time employment and school work will obviate against his extensive engagement with either parent.
The mother is criticised for not having a television. So what? The vast majority of children in the world do not. Indeed, in Western culture where households have televisions, there is great criticism of parents for letting children have too much time in front of them and the consequences of it such as obesity.
The father is criticised for not spending enough time with the child and leaving the child to some extent to his own devices. Again, so what? This is a teenage lad, nearly 15. One would not imagine that he has any great desire to spend his every waking moment engaged with a parent as he might of when he was two or three. That is what very small infants do. It is not what teenagers do. For a lad of X's age, bearing in mind he has about three years to go until he reaches his majority and is no longer within the court's jurisdiction, parents are the means by which he funds his enterprises, is taken to and from events, and otherwise distances himself as much as possible.
The criticism is raised that the father has, on at least two occasions, shared a bed with the child, whether overnight or not. The father protests it was because the child was ill and requested it. Again, so what? Surely society has not come to a point where a parent cannot get into the same bed with a child. It is not to suggest a nefarious purpose or ill intent. It is merely a parent having the last vestiges, the last few moments of having a child to care for before that child is completely individualised and an adult.
The matters complained of in the mother's household are similar. Complaints that the mother has, for example, disciplined the child by not allowing the child to use her computer when she has felt that he has made some changes to its operating system or, as is described, hacked her computer. She is entitled to discipline the child how she desires.
Each simply needs to put into context, into perspective the fact that they have a teenage child who, in light of their obvious dysfunction and non-communication and the discord and distrust between them, will know full well that he can say anything to a parent and it will be interpreted negatively and poorly. No doubt he does not wish to generate the conflict, but he would be fully aware that the less he says at this point the better.
The effect of change for X is best achieved through ameliorating that conflict. That is the one thing this court cannot achieve. It is a matter for the parents.
I accept the recommendation of the family consultant that referring the parties to external family counselling processes to assist them is pointless at this point. They are so cemented in their ways, it is unlikely to achieve any change at all.

Practical difficulty and expense

That is significant in this case, and I incorporate section 65DAA(5):
Reasonable practicality

(5) In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child's parents, the court must have regard to:
(a) how far apart the parents live from each other; and
(b) the parents' current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c) the parents' current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d) the impact that an arrangement of that kind would have on the child; and
(e) such other matters as the court considers relevant

The parents live some distance apart, a distance made all the more difficult to traverse as the mother does not drive. She is not criticised for that. It is just fact. What it does mean, in terms of travel arrangements, and what it has meant until the change in X's primary placement, was that Mr Wenfeld went to and from Ms Sercombe's accommodation, travelling from the Region B to Suburb E, to both collect and return X.
The arrangement that is proposed by Mr Wenfeld is that all changeovers will occur at a midway point, although it would seem somewhat closer to Mr Wenfeld's accommodation than Ms Sercombe, but nothing turns upon that. The reality is that young X can travel by train by himself. One would think he was able to get the train directly from school, should he so wish, to Suburb A to meet his mother, but there is then the issue of his getting back. The mother travelling on public transport, with reduced timetables, the possibility of track work and other maintenance, and dramatically increasing the amount of travel which occurs on a Sunday.
To her credit Ms Sercombe has engaged in an arrangement for the child's return on Sunday rather than taking him to school on Monday as it would mean he would need to leave so early he would arrive tired and it would not be beneficial to him. One thing that would be beneficial to him would be to maximise the amount of time he can spend with each of his parents, but particularly his mother, with whom he has lived until quite recently, and to minimise the amount of travel that he has to undertake or at least its duration. That would lend some support to a disparate sharing of travel.
I propose to make orders that the changeovers on Fridays, and at the beginning of the mother's periods with X, including during school holidays, occur by X being collected by the mother at Suburb A Railway Station. I propose to make orders that provide for X to be collected from the mother's home at the conclusion of each period by his father. That is a slightly greater burden of travel imposed upon the father but a corresponding lesser burden of travel imposed upon young X. That is the more important consideration. Indeed, the paramount consideration for subsection 60CA, or primary consideration, as it is described in the International Convention.
The parents have no capacity to implement equal or substantial time in light of the geographical and practical issues they have. They have no capacity to communicate and resolve difficulties, and there is nothing, sadly, which would appear possible to change that at this point. The impact of arrangements on the child is very much focused upon being shielded from dysfunctional communication and the child's awareness of it. That would support the child remaining, as he desires, albeit as a preference rather than a strident view, but a view that I am satisfied is sufficiently independent and based on the child's maturity and lived experience, with his father and spending time with his mother.

Capacity of the parents

Each is perfectly capable of meeting this young lad's needs if only they could acknowledge that of the other.

Maturity, sex, lifestyle and background of the child

That has particular relevance here. Young X has been the subject of conflict and dispute between his parents since his birth. 14 years, now nearly 15 years of childhood, spent knowing that his parents loathe each other, cannot communicate and will not cooperate on any realistic level. The parents might reflect on the burden that they have imposed on their child by that awareness. It does not assist, however, in favouring one proposal over the other.
Aboriginality is not relevant as neither parent identifies as Aboriginal or Torres Strait Islander, thus nor does X.
The attitude of the parents is already canvassed.
Family violence is not specifically raised as a factor in this determination.
There are no family violence orders between the parties, although there has been reference to the possibility of one being applied for.

Whether it's preferable to make orders that will least likely lead to the institution of future proceedings

I am satisfied that the best that can be done in that regard is to make orders that are clear and sustainable. That includes the travel arrangements to which I have referred.
Accordingly, I make orders as follows.

I certify that the preceding one hundred and twenty one (121) paragraphs are a true copy of the reasons for judgment of Judge Harman

Date: 5 December 2019

[2019] FCCA 3525

11 February 2019

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Remedies

Procedural Fairness